Employment Law Post-Brexit: Overview

It’s hard to get away from Brexit in the news at the moment but, whatever happens with Theresa May’s Brexit deal, it remains the case that the UK is scheduled to leave the EU at 11pm UK time on Friday, 29 March 2019. As things stand, there will not be a final break on that day as the two sides (UK and the EU) have agreed to a 21-month transition period to allow a smooth implementation of whatever Brexit deal is negotiated and minimise disruption to businesses.

So, what changes will there be to employment law post-Brexit?

Whether the UK can depart from current EU requirements in respect of employment law in the future will depend on the nature of the UK’s future relationship with the EU. Alternative trade arrangements may involve accepting some, or all, EU employment legislation. Even if the UK can potentially diverge from EU employment law, changes may not necessarily be immediate or far-reaching. This is because, when the UK leaves the EU, the European Union (Withdrawal) Act 2018 will repeal the European Communities Act 1972 and existing EU law will be converted into domestic law. Additionally, most EU Directives are already implemented in the UK by regulations or Acts of Parliament; for example, the EU Equality Directives are implemented by the Equality Act 2010. It will be for Parliament to decide whether to retain, amend or repeal domestic legislation.

Many key employment rights, including unfair dismissal, the minimum wage, statutory redundancy pay, shared parental leave and flexible working, are UK-based rights and do not stem from the EU at all. This means that they will be unaffected by Brexit.

In other areas of employment law, such as holiday pay (the right to 5.6 weeks’ holiday, as opposed to the EU minimum of four weeks) and maternity leave, the UK provides employee rights which exceed the EU minimum and so withdrawal from the EU is unlikely to produce a change to Government policy in these areas.

The areas which are currently governed by EU law and which have been identified as examples of areas where changes could be made in the future are:

• Agency workers’ rights;
• Working time – the UK already has its 48-hour opt out provision and a future Government may wish to remove the limit entirely;
• The harmonisation of contracts after a TUPE transfer; and
• The introduction of a cap on compensation in discrimination claims, similar to that for unfair dismissal.